Melissa (Osipoff) Camire and Henry Thomson-Smith, of Fisher Phillips, have provided this article, discussing a pair of decisions issued by Judge Paul Engelmayer, who sits on the Southern District of New York. Addressing the recently enacted EFAA, which amended the Federal Arbitration Act by prohibiting employers from unilaterally enforcing arbitration agreement for disputes alleging sexual assault or harassment, the article notes that Judge Engelmayer found the statute–which uses the word “case” and not “claim”–serves to preclude arbitration of any cause of action asserted in a complaint alleging sexual harassment or discrimination.
However, in the other case, Judge Engelmayer, finding the allegations of sexual harassment to be insufficient to survive a motion to dismiss, determined that the EFAA did not serve to preclude arbitration of the other alleged claims.
The takeaway for the authors is that these decisions may encourage those with “plausible claims of sexual harassment” “to allege sexual harassment in order to avoid arbitration of other employment claims.”
For those interested, the cases are Johnson v. Everyrealm, Inc. and Yost v. Everyrealm, Inc.